Judge dismisses two claims, keeps key pieces of Kern River lawsuit intact

A motion that challenged four claims made in a lawsuit against the City of Bakersfield over how it operates the Kern River got a half-and-half ruling from Kern County Superior Court Judge Gregory Pulskamp Monday evening.

However, the heart of the lawsuit – that Bakersfield breached its duties under the Public Trust Doctrine by dewatering the river through town – will remain intact.

“The City does not have the discretion to ignore its statutory and public trust duties,” Pulskamp’s ruling states.

The judge also overruled opponents’ arguments that the Kern River isn’t subject to California Fish and Game Code 5937, which requires dam owners to allow enough water to pass those structures to keep downstream fish in good conditions.

Opponents had argued that structures used to divert water out of the Kern River are weirs, or “conduits,” not dams. Pulskamp noted the code includes “all artificial obstructions” in its definition of dams.

“Logically, this broad definition of a dam would include a conduit (a diversion used for the purpose of taking or receiving water) because it is still an artificial obstruction,” Pulskamp wrote in his ruling. “Therefore, the City’s diversion structures (weirs) in the Kern River qualify as “dams.'”

Had opponents won on those two issues, it would have rendered Pulskamp’s injunction forcing the city to keep enough water in the river for fish moot.

“We’re happy that our claims under the public trust doctrine and the fish and game code were not dismissed; it means the injunction stays in place. We’re looking forward to litigating those claims in trial,” wrote attorney Adam Keats in an email.

Keats represents local public interest groups Bring Back the Kern and the Kern River Parkway Foundation along with the Sierra Club, Center for Biological Diversity and Audubon Society. Water Audit of California is also a plaintiff in the lawsuit, which was filed in 2022.

Pulskamp did dismisss two other claims in the lawsuit regarding alleged violations of a public resources code and that the City had created a public nuisance by dewatering the river.

Another hearing is scheduled for Feb. 20 in which Pulskamp will hear arguments by the J.G. Boswell Company, which wants to gain status as an intervenor in the case.

Meanwhile, water districts with Kern River rights, including Kern Delta Water District, the Kern County Water Agency and North Kern, Buena Vista and Rosedale-Rio Bravo water storage districts, have appealed the injunction issued by Pulskamp last fall to the 5th District Court of Appeal in Fresno.

Pulskamp didn’t say how much water should be kept in the river in that injunction, instead leaving that to Bakersfield and the plaintiffs to calculate. They initially agreed on 40% of a three-day mean of the natural flow as measured above Lake Isabella.

But that was upended when the water districts objected, and Pulskamp agreed, to Bakersfield taking its cut of the river ahead of other users.

Pulskamp ordered all sides back to the negotiating table to come up with an interim flow regime until the lawsuit is adjudicated. Those negotiations are ongoing.

While the interim flow is being decided, the City of Bakersfield notified all parties in December that it would keep enough water in the river so that 5 cubic feet per second reached McClung weir, about 3 miles west of Allen Road.

That has continued without objection, except by some concerned residents who’ve emailed photos to SJV Water of stagnant pools farther west of McClung filled with dying fish.

“There are literally thousands of fish getting ready to die,” one reader wrote.

Pulskamp’s injunction, however, only extends to from about Hart Park to McClung weir.